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Favre v. Wal-Mart Stores6/25/2002
NATURE OF THE CASE: CIVIL - TORTS - OTHER THAN PERSONAL INJURY AND PROPERTY DAMAGE
TRIAL COURT DISPOSITION: GRANTED SUMMARY JUDGMENT IN FAVOR OF DEFENDANT
DISPOSITION: AFFIRMED
. Kevin Favre was involved in an altercation with Steven Carver at the Wal-Mart Auto Service Center in Waveland, Mississippi on July 17, 1991. At the time of the altercation, Favre was employed in the auto service center and was there off-duty having work done on a relative's vehicle. Carver also worked for Wal-Mart in the auto service center and was on duty at the time of the altercation. Carver and Favre engaged in fisticuffs which had to be broken up by other Wal-Mart employees. As a result of this altercation, both Carver and Favre were terminated from employment with Wal-Mart Stores, Inc. Favre filed suit against both Carver and Wal-Mart alleging that Carver assaulted him during the course and scope of his employment with Wal-Mart. Favre also sued Wal-Mart for wrongful termination. The trial court granted summary judgment in favor of Wal-Mart on both issues finding that there was no genuine issue of material fact to be adjudicated. Favre later settled his claims against Carver and dismissed the lawsuit. Aggrieved by the trial court's decision granting summary judgment in favor of Wal-Mart, Favre perfected this appeal contending that genuine issues of material fact exist concerning Wal-Mart's liability under theories of respondeat superior and wrongful termination.
LEGAL ANALYSIS
. Orders granting summary judgment are subjected to de novo review. Dailey v. Methodist Med. Ctr., 790 So. 2d 903, 907 ( ) (Miss. Ct. App. 2001). Accordingly, all evidence is viewed in the light most favorable to the non-moving party and the party is given the benefit of every reasonable doubt. Id. The burden to show that no genuine issue of material fact exists is on the moving party. Id. A material fact is a factual issue "that matters in an outcome determinative sense." Id. All questions of law are also reviewed pursuant to the de novo standard. Donald v. Amoco Prod. Co., 735 So. 2d 161, 165 ( ) (Miss. 1999). With these standards in mind, we look to the issues raised to determine whether a genuine issue of material fact exists.
1. WHETHER FAVRE'S APPEAL WAS TIMELY FILED.
. Wal-Mart contends that the appeal filed by Favre was untimely filed. Wal-Mart's motion for summary judgment on the issue of assault was granted on September 12, 1997. Wal-Mart's motion for summary judgment on the issue of wrongful termination was granted on February 1, 2000. The lawsuit was finally dismissed on April 25, 2001. Favre filed his notice of appeal on May 1, 2001.A notice of appeal must be filed within thirty days from the date of the entry of the judgment appealed from. M.R.A.P. 4(a). A judgment is any final decree or order from which an appeal lies. M.R.C.P. 54(a). In the case of lawsuits involving multiple parties and issues as are presented here, the trial court may make an entry of final judgment as to one or more parties or issues "only upon an expressed determination that there is no just reason for delay and upon an expressed direction for the entry of the judgment." M.R.A.P. 54(b). Absent said expressed determination and direction, any order that adjudicates the rights of one or more parties or issues but not every party or all issues does not terminate the lawsuit as to any of the parties or issues because the order is subject to revision and not deemed final until the order adjudicating the rights of all the parties or all issues is entered. M.R.A.P. 54(b).
. The trial court while determining that Wal-Mart was not liable under either theory presented by Favre
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